PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No: 03-2372

GREGORY HUBBARD; ALVIN PHILLIPS;

JULIAN PAYNE; CURTIS GIBBS;

GREGORY J. BOLLING; LEONARD GARNER;

GREGORIO TOMAS; DESMOND BROWN;

THELLIE CHAMBLEE; SPUD M. BURNS, JR.;

ROBERT WARD; CHRISTOPHER VAVALA;

KRISTOFER JACKSON; TIMOTHY THOMAS;

PAUL C. WOODWARD; JOSEPH MICHAEL CREEGAN,

JR.; JAVARI WILLIAMS; FLOYD HUNT; BRYANT

CHARLES; CLAUDE JONES; EDDIE A. CARTER;

THEODORE JACKSON; ANDRE MURRAY; ATIF

MOHAMMAD; PEDRO RIVERA, JR.;

ANDREW P. BLAKE; LINWOOD WILSON;

WILLIAM T. DAVIS; WILL T. GRAHAM;

KEVIN M. AGNEW; NOEL SANTIAGO;

WALTER KRAUSE, III; BARRY J. GREEN;

WEDUS MADDOX, a/k/a Wedus Moddo;

RAYMOND STEVENS; JAMES A. WILSON;

MATTHEW MAJOR, JR.; PERCY OSBORNE;

KEVIN KETCHUM,

Appellants

v.

2

STANLEY TAYLOR, Commissioner;

RAPHAEL WILLIAMS, Warden;

M. JANE BRADY, Attorney General

Appeal from the United States District Court

for the District of Delaware

(Civ. No. 00-cv-00531)

District Judge: Hon. Sue L. Robinson

Argued: February 12, 2004

Before: SCIRICA, Chief Judge, ROTH and

McKEE, Circuit Judges

(Opinion filed: February 23, 2005 )

PAUL E. CRAWFORD, ESQ. (Argued)

HELENA RYCHLICKI, ESQ.

Connolly Bove Lodge & Hutz

P.O. Box 2207

Wilmington, DE 19899

Attorneys for Appellants

RICHARD W. HUBBARD, ESQ. (Argued)

GREGORY E. SMITH, ESQ.

Deputy Attorneys General

State of Delaware

Department of Justice

820 North French Street, 6th Floor

Wilmington, DE 19801

3

Attorneys for Appellees

OPINION

McKEE, Circuit Judge.

Pre-trial detainees housed at a correctional facility in

Delaware ask us to review the district court’s grant of summary

judgment in favor of prison officials and the state’s Attorney

General. The detainees claim that certain conditions of their

confinement deprive them of liberty without due process of law

in violation of the Fourteenth Amendment. Inasmuch as we

conclude that the district court improperly analyzed their claim

under the Eighth Amendment, rather than the Due Process

Clause of the Fourteenth Amendment, we will reverse and

remand for an appropriate due process analysis.

I. FACTS

The Multi-Purpose Criminal Justice Facility commonlyknown as “Gander Hill,” is located in Wilmington, Delaware. It was constructed in 1982 and enlarged when a new wing wasadded in 1992. Stanley Taylor has been the Commissioner ofthe Delaware Department of Corrections (the “DOC”) since thefall of 1995, Raphael Williams is the warden at Gander Hill,and M. Jane Brady is the Attorney-General of Delaware.

On May 30, 2000, a number of pre-trial detainees atGander Hill filed a handwritten pro se complaint against Taylor,Williams, and Brady. The suit was brought under 42 U.S.C. §1983 and alleged that various conditions of the detainees’confinement violated the Due Process Clause of the Fourteenth

1The complaint also named the Delaware Department of

Corrections as a defendant. The Department moved for

judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c)

arguing that it was immune from suit under the Eleventh

Amendment. The district court granted that motion and the

plaintiffs have not appealed that ruling.

2 For clarity, we will refer to the pre-trial detainees

collectively as “plaintiffs” and refer to Osbourne and Ketchum

individually. It is not clear whether Ketchum and Osbourne are

pre-trial detainees or convicted inmates; however the amended

complaint prays for relief based upon plaintiffs’ status as pre-

trial detainees. We therefore must analyze their claims on that

basis.

3 In their brief, the defendants suggest that at least some of

the plaintiffs may actually be convicted inmates and not pre-trial

4

Amendment.1 An amended complaint was filed followingappointment of counsel. The amended complaint soughtdeclaratory and injunctive relief, damages, attorneys’ fees andcosts; and it added Kevin Ketchum and Percy Osbourne asplaintiffs. Like the original plaintiffs, Ketchum and Osbournealleged a due process violation based upon conditions of theirconfinement, but they added a claim under the Americans withDisabilities Act.2

Pre-trial detainees are housed in the West Wing ofGander Hill, and convicted inmates are generally housed in theEast Wing.3 The typical West wing modular unit or “pod”

detainees. As we will explain, that classification determines the

analysis that applies to the conditions of confinement claim.

Defendants state: “[d]ue to the extensive criminal history of the

Plaintiffs and their lack of memory, it is difficult to ascertain

whether any of them was a detainee or a sentenced inmate

during any particular period of incarceration at Gander Hill.

Many of them were jailed for new crimes and violations of

probation or parole for a previous crime.” Appellees’ Br. at 2.,

n.3.

However, it is difficult to determine if defendants are

sincerely challenging plaintiffs’ classification as pre-trial

detainees or merely attempting to undermine the merits of their

claims by disparaging plaintiffs’ character. The defendants

concede that pre-trial detainees are housed in the West wing,

where the challenged conditions exist. The defendants state:

“[t]he Amended Complaint is focused specifically on the West

wing. . . and the gymnasium. Generally, detainees are housed in

the West wing and sentenced inmates are housed in the East

wing.” See Appellees’ Br. at 6.

5

contains two housing units connected by a control room fromwhich correctional officers can observe the two units. Each unitcontains a large dayroom of approximately 3,900 square feet,containing a sink, tables, chairs and a television. Twenty cellssurround the dayroom. With some minor variation, they are allapproximately the same size.

A. The Conditions of Confinement Claim.

Plaintiffs’ conditions of confinement claim rests upon

4In their amended complaint, plaintiffs allege a number ofother unconstitutional conditions of confinement including:being housed in the gym and fitness center because ofovercrowding; cold food; lack of access to the law library;frequent lockdowns resulting in confinement in cells for 8 to 16hours a day; inadequate access to medical care; and deliberateindifference to prisoners’ conditions by failing to provide basicnecessities of life, including health care, exercise, personalsafety, food and habitable space. Hubbard v. Taylor, 2003 WL1697537 at *1 (D.Del. March 28, 2003). However, in thedistrict court, the plaintiffs limited their claim to being required

to sleep on mattresses on the floor. Id. at *4.

5 Prison officials began triple celling in 1999.

6

their challenge to the practice of housing three detainees in cells

intended and designed for one person (“triple-celling”).4

Plaintiffs claim that triple-celling requires someone to sleep on

a mattress that must be placed on the cell floor adjacent to a

toilet. Plaintiffs allege that this violates the Fourteenth

Amendment by depriving them of their liberty without due

process of law.5

The defendants concede that an inmate must sleep on afloor mattress when three are housed in a given cell. When thathappens, the newest arrival is required to sleep on a mattress onthe floor until one of his cellmates is released or moved. Thatfrees a bunk for the inmate who had been on the floor mattress,and any new arrival in that cell would then take his place on the

6 The mattress can be placed under the lower bunk during theday.

7

floor mattress.6

The cells range in size from 69 to 76 square feet, and thenet unencumbered space in the cell (gross footage of 69-76square feet less space required for a bed, mattress, desk andtoilet) is less than 50 square feet or 16 square feet per occupantof each tripled cell. Plaintiffs claim that the bunk bed and floormattress leave extremely limited space for three adult men tomove about in the cell. They claim that these crampedconditions have caused injuries including some as serious as abroken leg. For example, Darrin Moon was a detainee at GanderHill in June 2000. He claims that his leg was broken when acellmate jumped off the bunkbed in the middle of the night andlanded on Moon’s leg. Another detainee, Gregory Bollingalleges a similar mishap. Bollling claims he sustained numerousinjuries including an infected shin as a result of attempting tonavigate the one foot clearance between the bunkbed and hiscellmate’s mattress,

Plaintiffs claim that the deprivations are exacerbatedbecause sleeping on the floor forces detainees to sleep very nearthe open toilet. This has purportedly resulted in urine and fecesregularly splashing on whomever is relegated to the floormattress. For example, detainee Gregory Hubbard stated, “oneof the primary things that I felt was degrading was the sleepingon the floor and having to sleep on the floor next to a urinal ortoilet as long as I did when other arrangements could have been

8

made to provide me with a bunk like the other two individualsin my room.”

Plaintiffs claim that pre-trial detainees typically spend a

minimum of 2 months, and most spend 3 to 7 months, sleeping

on a floor mattress before a cellmate leaves and a bunk becomes

available. They also argue that they have to deal with the

extreme discomfort and disease associated with sleeping on a

concrete floor. According to them, a Prison Facilities Audit

supports their claim that the foam mattresses provided by the

prison officials are thin, worn-out and filthy. The Prison

Facilities Audit described the conditions in pertinent part as

follows:

In most housing units – many mattresses are used

on the floor without protective covers. Since the

institution does not have mattress sanitizing

facilities, some sort of protective cover should be

used. If covers are not feasible, then perhaps a

sheet of plastic or a cloth sheet should be placed

on the floor to help keep the mattress clean.

Plaintiffs insist that conditions were no better five months later

when a report noted that “[t]here are no facilities available for

cleaning of those mattresses.” Still later, in May 2001, the

unsanitary conditions were purportedly still being noted in the

official internal reports. According to plaintiffs, these floor

mattresses were not only unsanitary, they were also so thin,

worn and uncomfortable that sleeping on them was tantamount

to actually sleeping on the bare floor.

7This term is misleading. “Triple bunking” actually refers to

confining three people in a cell with each being provided with

a permanent bunk-type bed. See Union County Jail Inmates v.

BiBuono, 713 F.2d 984, 994 n.12 (3d Cir. 1983). As we have

explained, in Gander Hill, two detainees have bunk beds and the

third has to sleep on a mattress on the floor. Accordingly, we

refer to the practice as “triple-celling.” Id.

9

Plaintiffs insist that prison officials could have prevented

“triple bunking”7 and its associated problems. They claim that

these problems would have been avoided had Commissioner

Taylor added the additional 2500 beds that had been envisioned

as part of a “Master Plan”that was devised in response to

litigation that has been ongoing for 20 years. The earliest suit

was filed in March 1980 and was resolved in a 1988 Settlement

Agreement. There, prison officials agreed to stop “double

bunking” and return to placing a single inmate in cells at state

prisons. Dickerson v. Castle, Civ. Act. No. 10256, Delaware

Court of Chancery. However, plaintiffs claim that theadditional beds were never occupied because prison officialsfailed to train enough correctional officers to properly respondto an increase in the prison population. Thus, in plaintiffs’view, the prison officials are responsible for the overcrowdedconditions at Gander Hill.

B. The Americans With Disabilities Act Claim.

As noted above, the amended complaint added the ADA

claims of Kevin Ketchum and Perry Osbourne. However,

Osbourne has since died of cancer and the plaintiffs concede

8 The plaintiffs claim that Delaware law requires that inmatesbe afforded medical care without regard to cost. See 11Delaware Code § 6536(b) (“an inmate shall not be refusedmedical treatment for financial reasons. . . .”).

9 Ketchum has apparently been confined at Gander Hill since

1997. We therefore assume that he is a convicted prisoner, and

not a pre-trial detainee. However, as we have noted above, the

amended complaint seeks redress for conditions of confinement

of plaintiffs as pre-trial detainees. See note 2, supra.

10

that his death moots his claim. Ketchum has end-stage renalfailure and loss of kidney function. He has been on dialysissince 1994 and allegedly requires a kidney transplant thatofficials purportedly refuse to facilitate.8 However, he can notreceive a kidney transplant unless he is first placed on thetransplant waiting list maintained by the United Network forOrgan Transplants (“UNOS”).

According to plaintiffs, Ketchum has been petitioningprison officials to start the process for getting a kidneytransplant since 1977 when he first asked them to releasedocuments so that he could be placed on the transplant list ashis physician recommended. According to plaintiffs, Ketchumhas a compelling need to get on the transplant list quicklybecause he is reaching the outer limits of the time he cantolerate dialysis.9

C. The Defendants’ Response.

Gander Hill receives approximately 18,000 admissions

11

per year, and the defendants maintain that neither Taylor nor thewarden have any control over that number. The officialsconcede that triple-celling is used at Gander Hill, and that thisforces some detainees to sleep on a floor mattress. However,they deny that the mattresses are adjacent to toilets. Officialsclaim that there is ample room to arrange a mattress so that thetoilet is at the resident’s foot and several feet away. Thus, saythe defendants, there is no reason for anyone to worry aboutunsanitary and unhealthy conditions as a result of sleeping onthe floor. They draw support for their position from thedeposition testimony of detainees Moon and Wilson.

Moon testified in relevant part as follows:I chose to sleep with my head towards thewindow and my feet towards the toilet. Let’s say,from my waist down where their beds are.Because if I slept the other way, and somebodyused the bathroom, I would have to worry abouthim standing over top of me and water and urinesplashing over me.

The officials note that Moon did not say that urine and fecessplashed on him as plaintiffs’ claim suggests. Rather, he onlysaid that he worried about that happening. Moon also statedthat he could address that concern by simply sleeping with hishead away from the toilet.

Defendants also cite the exchange during detaineeWilson’s deposition that defendants claim further demonstratesthat plaintiffs’ claims are exaggerated:

12

Q: So it is your contention that you’re not beingtreated like a human being?

A: On that west side? Yes, sir. If you got tosleep down beside the toilet and feces and yougot to use the bathroom when the C.O. not comein and there’s a couple other inmates in there withyou; yes. Yes. Food cold. Whew. Yes.

Officials point out that Wilson did not say that urine and fecessplashed on him either. Rather, he said that he had to “sleepdown beside the toilet and feces.” The defendants argue that itcan be assumed that any feces remained inside the toilet andthey note that Wilson’s testimony is not to the contrary. Thedefendants also point out that even if one assumes Wilson wassleeping with his head next to the toilet, the record does notexplain why he chose to sleep in that position when heapparently did not have to.

Moreover, according to the defendants, the detaineeswho must sleep on floor mattresses are not near the toilets inany event. In his affidavit, Acting Deputy Warden Phelpsclaims that most mattresses in cells in the West Wing of GanderHill are two and one-half feet from the toilet. Althoughplaintiffs estimate that distance, Phelps actually measured it andMoon’s testimony is not inconsistent with Phelps’ testimonybecause Moon did not specify a distance. Moreover, defendantspoint out that the record further undermines plaintiffs’ claims ofdisease because Moon’s deposition is the only record of diseaseand he only testified that he caught a cold.

10The district court’s opinion contains a discussion of the

conditions of confinement claim. However, it does not contain

13

As noted earlier, the plaintiffs allude to official recordsthat purportedly documented allegations regarding old and dirtymattresses. The defendants claim that this is a distortion.According to defendants, plaintiffs fail to mention that thosemattresses were replaced after prison officials realized thecondition the old mattresses were in.

The defendants refute Ketchum’s ADA claim by notingthat Ketchum never suffered any injury while in the care of theDOC and that Ketchum’s own physician disapproved hisplacement on the kidney transplant list. According to thedefendants, the plaintiffs admitted in the district court thatKetchum’s own physician and the prison health care providertold Ketchum that he was not eligible for the NationalTransplant List. Furthermore, defendants claim that Ketchumadmitted that the Chief of the Bureau of Prisons told him thatthe DOC would pay for a transplant if the doctors said it wasmedically necessary.

II. DISTRICT COURT PROCEEDINGS

The district court issued a Memorandum Order grantingsummary judgment to the prison officials on both claims. Thecourt also denied a motion for class certification that plaintiffshad filed in an attempt to represent a class of over 3,000 pre-trial detainees. See Hubbard v. Taylor, 2003 WL 1697537(D.Del. March 28, 2003).10 This appeal followed.11

any discussion of the ADA claim.

11 Plaintiffs have not appealed the district court’s refusal to

certify the putative class. That issue is, therefore, not before us.

12We exercise plenary review over the district court’s grant

of summary judgment. Caprio v. Bell Atlantic Sickness and

Accident Plan, 374 F.3d 217, 220 (3d Cir. 2004). In reviewing

the grant of summary judgment, we must view the facts in the

light most favorable to appellant and affirm only if there was no

genuine issue as to any material fact and appellees are entitled

to judgment as a matter of law. Anderson v. Consol. Rail Corp.,

297 F.3d 242, 247 (3d Cir. 2002).

13 The Fifth Amendment Due Process Clause was implicated

in Bell because the plaintiffs were federal pre-trial detainees.

Inasmuch as we are here concerned with state pre-trial

detainees, any applicable constraints must arise from the Due

14

III. DISCUSSION12

A. Applicable Legal Principles.

The Supreme Court first discussed the application of the

Due Process Clause to pre-trial detainees in Bell v. Wolfish, 441U.S. 520 (1979). There, federal pre-trial detainees claimed that

a number of the conditions of their confinement violated various

provisions of the Constitution. The challenged conditions

included the practice of confining two inmates in a cell intended

and designed for one. That practice was the only condition that

implicated their due process rights. 441 U.S. 530.13 In

Process Clause of the Fourteenth Amendment. See Fuentes v.

Wagner, 206 F.3d 335, 344 (3d Cir. 2000). However, the

Court’s due process analysis under the Fifth Amendment in Bell

nevertheless controls that inquiry. See, e.g., Union County Jail

Inmates v. DiBuono, 713 F.2d 984, 991-92 (3d Cir. 1983).

15

resolving the issue, the Court stated:

[i]n evaluating the constitutionality of conditions

or restrictions of pretrial detention that implicate

only the protection against deprivation of liberty

without due process, we think that the proper

inquiry is whether those conditions amount to

punishment prior to an adjudication of guilt in

accordance with law. For under the Due Process

Clause, a detainee may not be punished prior to an

adjudication of guilt in accordance with due

process of law.

Id. at 535 (citations omitted). Of course, the government “may

. . . incarcerate a person charged with a crime but not yet

convicted to ensure his presence at trial[.]” Id. at 531.

“Traditionally, this has meant confinement in a facility which,

no matter how modern or how antiquated, results in restricting

the movement of a detainee in a manner in which he would not

be restricted if he simply were free to walk the streets pending

trial[.]” Id. at 537. There nevertheless remains “a distinction

between punitive measures that may not be constitutionally

imposed prior to a determination of guilt and regulatory

14For example, in Kennedy v. Mendoza-Martinez, 372 U.S.

144 (1963), the Court examined the automatic forfeiture-of-

citizenship provisions of the immigration laws to determine

whether that sanction was punishment or a regulatory restraint.

It held that because forfeiture of citizenship traditionally had

been regarded as punishment and because the legislative history

of the provisions conclusively showed that forfeiture was

intended to be punitive, automatic forfeiture was punishment

that could not constitutionally be imposed without due process

of law. Id. at 167-170.

16

restraints that may.”14 Id. (citations omitted).

In order to determine whether the challenged conditions

of pre-trial confinement amount to punishment,

[a] court must decide whether the disability is

imposed for the purpose of punishment or

whether it is but an incident of some other

legitimate governmental purpose. Absent a

showing of an expressed intent to punish on the

part of the detention facility officials, that

determination generally will turn on whether [it

has] an alternative purpose . . . and whether it

appears excessive in relation to [that] purpose . .

. . Thus, if a particular condition or restriction of

pretrial detention is reasonably related to a

legitimate governmental objective, it does not,

without more, amount to “punishment.”

Conversely, if a restriction or condition is not

17

reasonably related to a legitimate goal – if it is

arbitrary or purposeless – a court may permissibly

infer that the purpose of the governmental action

is punishment that may not constitutionally be

inflicted upon detainees qua detainees.

Id. at 538-39 (citations, brackets and internal quotations

omitted). However, the Court did not “detail the precise extent

of the legitimate governmental interests that may justify

conditions or restrictions of pretrial detention[.]” In Bell, the

Court reasoned that it need only

recognize that in addition to ensuring the

detainees’ presence at trial, the effective

management of the detention facility once the

individual is confined is a valid objective that may

justify imposition of conditions and restrictions of

pretrial confinement and dispel any inference that

such restrictions are intended as punishment.

Id. at 540. In determining whether conditions or restrictions are

reasonably related to the Government’s interest in

maintaining security and order and operating the

institution in a manageable fashion, courts must

heed our warning that such considerations are

peculiarly within the province and professional

expertise of corrections officials, and, in the

absence of substantial evidence in the record to

indicate that the officials have exaggerated their

response to these considerations, courts should

18

ordinarily defer to their expert judgment in such

matters.

Id. at 540 n.23 (citations and internal quotations omitted).

The Court held that double-bunking under the

circumstances there did not constitute punishment. Accordingly,

it did not violate the pre-trial detainees’ due process rights. Id.

at 541-543. More precisely, the Court found no due process

violation where pre-trial detainees who were detained for

generally less than sixty days were housed in 75 square feet of

space containing a double bunk for six to seven hours a day,

primarily for sleeping purposes. However, the Court offered a

significant caveat. It cautioned that “confining a given number

of people in a given amount of space in such a manner as to

cause them to endure genuine privations and hardship over an

extended period of time might raise serious questions under the

Due Process Clause as to whether those conditions amounted to

punishment.” Id. at 542. It did not, however, elaborate upon the

duration of confinement that could constitute “an extended

period of time,” nor did it elaborate upon the kind of “privations

and hardship” that could constitute punishment in violation of

the Due Process Clause.

Those issues were, however, present four years later

when we decided Union County Jail Inmates v. DiBuono, 713

F.3d 984 (3d Cir. 1983). There, pre-trial detainees alleged that

admittedly serious overcrowding in the county jail resulted in

conditions of confinement that constituted punishment in

violation of the Due Process Clause of the Fourteenth

15In Union County, sentenced inmates also challenged the

conditions of their confinement. However, the discussion of

sentenced inmates’ claims is not relevant here because those

claims were analyzed under the Eighth Amendment. 713 F.2d

at 997.

19

Amendment.15 After discussing Bell v. Wolfish at some length,

we distilled its teachings into the following two-step test:

we must ask, first, whether any legitimate

purposes are served by these conditions, and

second, whether these conditions are rationally

related to these purposes. In assessing whether

the conditions are reasonably related to the

assigned purposes, we must further inquire as to

whether these conditions “cause [inmates] to

endure [such] genuine privations and hardship

over an extended period of time, that the adverse

conditions become excessive in relation to the

purposes assigned to them.

713 F.3d at 992 (citing Bell, 441 U.S. at 542) (internal quotation

marks omitted). Our inquiry into whether given conditions

constitute “punishment” must therefore consider the totality of

circumstances within an institution. Id. at 996; see also Jones

v. Diamond, 636 F.2d 1364, 1368 (5th Cir. 1981) (“In

determining whether conditions of confinement are

unconstitutional under . . . the fourteenth amendment, we do not

assay separately each of the institutional practices, but look to

the totality of the conditions.”), overruled in part on other

grounds, Int’l Woodworkers of America, AFL-CIO v. Champion

20

Int’l Corp., 790 F.2d 1174 (5th Cir. 1986) (en banc).

B. Effect of Union County Jail Inmates v. DiBuono on

the Plaintiffs’ Condition of Confinement Claim.

Plaintiffs argue that Union County Jail Inmates controls

our analysis and requires that we conclude that requiring pre-

trial detainees to sleep on floor mattresses constitutes a due

process violation. The district court rejected that argument based

upon its conclusion that the relevant discussion there was

dictum. 2003 WL 1697537 at *4. Plaintiffs’ strongly disagree

and forcefully argue that our inquiry is controlled by the

precedent of Union County. The defendants just as forcefully

disagree. Since Union County could potentially determine the

outcome here, we will examine that decision in some detail.

As noted earlier, in Union County, pre-trial detaineesbrought a class action under § 1983 against various countyofficials alleging that certain of the conditions of theirconfinement violated the Due Process Clause of the FourteenthAmendment. The county admitted that pre-trial detainees werebeing held in the overcrowded conditions specified in thecomplaint. However, the county filed a third party complaintagainst the Commissioner of the Department of Correctionsalleging that the overcrowding resulted from theCommissioner’s refusal to house prisoners who had beensentenced to state prison, as required by statute. According to

the county, that refusal caused the overcrowding by requiring

the county to house inmates who would otherwise have been

housed in state facilities

16 The agreement also established a procedure whereby thecounty could request an immediate hearing before the districtcourt if the jail population approached or reached the maximumcapacity of 238. The court could then order the release ortransfer of enough inmates to reduce the population to belowthe specified maximum.

21

Thereafter, the Governor issued an executive orderdeclaring that overcrowding in state prisons and county jailsconstituted a state of emergency. The Governor’s order alsosuspended operation of the statute requiring him to acceptcounty prisoners who had been sentenced to state prison.Instead, it gave the Commissioner the authority to designate theplace of confinement for both county and state inmates whetherthey were pre-trial detainees or convicted prisoners. UnionCounty Jail was designated as the place of confinement for stateprisoners sentenced in Union County because the Commissionerhad determined that certain modifications would allow it toexceed its rated capacity of inmates.

In time, the county inmates entered into a consent decreewith the county specifying that prison capacity would notexceed one inmate per cell.16 The district court approved theagreement and entered a consent decree based upon it eventhough the Commissioner of Corrections was not a party to it.Nevertheless, the court directed the Commissioner to showcause why he should not be compelled to accept custody of allstate prisoners in the county jail, and the court subsequentlyappointed a Special Master to investigate jail conditions andmonitor compliance with the consent decree.

22

Thereafter, the Special Master found six specificviolations that he believed constituted violations of the pre-trialdetainees’ constitutional rights. These included: (1) housingseveral inmates in detention cells for more than a few dayswithout adequate sleeping arrangements; (2) requiring detaineesto sleep on floor mattresses adjacent to toilets, for more than afew days; (3) requiring detainees to sleep on floor mattresses inother parts of the jail, for more than a few days; (4) requiringdetainees to wear the same clothing for several weeks, [inviolation of a state statute]; (5) failing to screen forcommunicable diseases; and (6) depriving detainees of anymeaningful opportunity for recreation.

The Master concluded that overcrowding resulted fromhousing two inmates in cells designed for one, and requiring thesecond inmate to sleep on “mattresses placed on the floors ofthese 5' x 7' cells next to the toilet.” 713 F.2d at 988. TheCommissioner objected to the Master’s report. TheCommissioner claimed that since housing more than one inmatein a cell had not been declared unconstitutional, theovercrowding could be solved by using bunk beds instead offloor mattresses. According to the Commissioner, this wouldsatisfy the mandate of Bell v. Wolfish.

The district court adopted the Special Master’s findingswithout modification. The court held “that the totality of thecircumstances resulting from overcrowding at the Jail, and mostnotably forcing pre-trial detainees to sleep on mattresses placedon the floor, constituted a violation of the detainees’ dueprocess rights.” 713 F.2d at 989. The district court rejected theCommissioner’s suggestion for bunk beds. The court reasoned

17 See 713 F.2d at 990 n.8, (“[o]ther than the provisions of(f), (g) and (h) noted herein, we do not understand theCommissioner to object to any provision of the consentjudgment.”).

23

that, given space limitations, double-celling amounted topunishment in violation of the pretrial detainees’ due processrights. Since bunk beds would only perpetuate housing twoinmates in cells designed for one, the district court invalidatedthe governor’s executive order. The court also voided theCommissioner’s designation of Union County jail as the placeof confinement for state prisoners sentenced in Union County.Accordingly, the Commissioner had to transfer all stateprisoners to state prisons.

On appeal, the Commissioner objected to the followingprovisions of the consent decree: ¶ (f) (establishing a maximumcapacity at the jail [at] one inmate per general population cell);¶ (g) (giving the defendants until July 1, 1982 to reduce theinmate population to 238); and ¶ (h) (authorizing the county tonotify the department of corrections to remove any stateprisoners who remained at the county jail beyond the statutorilyallowed period of time).17 The gist of the Commissioner’sobjection to the consent decree was that state law gave him theauthority to determine inmate population levels in the UnionCounty Jail.

In reviewing the district court’s decision, we noted thatthe district court’s conclusion that the jail overcrowding wasrationally connected to the objective of detaining inmates who

24

could not make bail. The fact that the policy served both stateand county governmental interests was not contested on appeal.713 F.2d at 993. Therefore, “[t]he only question . . . remaining[under Bell was] whether the conditions and restrictionsresulting from inmate overcrowding [could] be consideredexcessive in relation to the purposes assigned to them.” Id. Inconducting that analysis, we noted that two conclusionsemerged from the proceedings in the district court:

First, from the positions taken by the County andthe Commissioner, we do not understand either ofthem seriously to contest the unconstitutionality,in the context of overcrowded conditions, offorcing pre-trial detainees to sleep for more thana few days on mattresses placed on the floor of a5' x 7' cell adjacent to an open toilet which bothcellmates must use. Indeed, the Countyconceded, at oral argument . . . that conditions asfound by [the Special Master] wereunconstitutional. Thus, the district court’simplicit holding that conditions as found by theSpecial Master are “excessive in relation to thepurposes assigned to them,” is not questioned onthis appeal.

Our second conclusion is that, of all the variousconditions challenged as being unconstitutional,the most significant, and indeed the onlycondition not meeting constitutional standards,was the practice of placing a mattress on thefloor for the second occupant of a cell designed

25

for but one inmate. It is not surprising, therefore,that the Commissioner focused on an alleviationof this latter condition by recommending double-bunking in such cells. The Commissionercontended that if, by providing double bunks, . .. constitutional objections to overcrowding couldbe overcome, then the Commissioner’s discretionin determining where state prisoners should beplaced, should not be overridden. We thereforeturn to a consideration of the two-in-a-cell ordouble-bunking practice.

Id. at 994 (emphasis added).

The district court had concluded that double-bunking ofpre-trial detainees was a constitutional violation because itimposed hardships tantamount to punishment. Accordingly, thecourt had ruled that practice an unconstitutional denial of thedetainees’ right to due process. However, we rejected thedistrict court’s spatial analysis and found that theCommissioner’s recommended double-bunking would not onlyalleviate the problem resulting from floor mattresses, but wouldalso free recreational space where detainees had previously hadto sleep. We acknowledged that, even with double-bunking, thecells at issue would remain “cramped and overcrowded” and“very far from ideal[.]” However, we also noted that pre-trialdetainees would have adequate room for sleeping andrecreation. Id. at 996. We therefore “reject[ed] the districtcourt’s holding of unconstitutional conditions based solely onconsiderations of space.” Id. at 996 (citation and internalquotations omitted). We explained:

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First, and most importantly, providing doublebunks will avoid the unsanitary and humiliatingpractice of forcing detainees to sleep onmattresses placed either on the floor adjacent tothe toilet and at the feet of their cellmates, orelsewhere in the Jail. Second, double-bunkingwill avoid the practice of having more than twodetainees without adequate sleeping arrangementsin the detention cells. Third, double-bunking willmake it possible for recreational areas at the Jailto be cleared and dedicated to their originalfunction. Thus, the remedial scheme put forth bythe Commissioner, combining double-bunkingwith discharge of the County’s obligations underthe consent judgment, would effectively cure allof the conditions that were of particular concernto the Special Master. . . .

Thus, although the question is not withoutdifficulty, we are satisfied that, if theCommissioner’s proposals. . . were fullyimplemented, conditions at the Jail would passconstitutional muster.

Id. at 996 (emphasis added). We also noted that pre-trialdetainees were confined at the jail “for generally a maximumperiod of 60 days.” Id. at 997 (citation omitted). We held thatthe district court had abused its discretion in rejecting theCommissioner’s proposed remedies and ordered the districtcourt to vacate portions of the consent decree that had rejectedthe Commissioner’s proposed remedy. Id. at 1003. We

18The plaintiffs then note that the “various conditions” we

were referring to were the six overcrowding conditions that we

have set forth above. Id. at 993-94 n.11.

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therefore concluded that the Commissioner’s plan would

alleviate the constitutional violations.

Plaintiffs’ condition of confinement claim here is largely

based upon the following language in Union City: “[O]f all thevarious conditions challenged as being unconstitutional, themost significant, and indeed the only condition not meetingconstitutional standards, was the practice of placing a mattresson the floor for the second occupant of a cell designed for butone inmate. 713 F.2d at 994.18 However, the district court here

properly recognized that statement was dictum because the

Commissioner (the appellant in Union County) had conceded

the unconstitutionality of the practice. In Union County, we

specifically noted that “[t]he State does not assert that it is

proper for the County to require inmates to sleep on mattresses

on the floor . . . . So the Special Master properly recommended

that the floor mattresses practice should be eliminated.” Id. at

994. Thus, we did not have to consider the constitutionality of

the practice because both parties agreed that it was

unconstitutional. Accordingly, the issue of the constitutionality

of placing floor mattresses adjacent to a toilet was simply not

before us and we did not decide it. Therefore, it was dictum. See

Cerro Metal Products v. Marshall, 620 F.2d 964, 978 (3d Cir.

1980) (statements pertaining to issues not decided are dictum

19 The nature of this statement in Union County became even

more evident three years after Union County when we decided

Anela v. City of Wildwood, 790 F.2d 1063 (3d Cir. 1986).There, we referred to this portion of our opinion in UnionCounty as a “comment[]” rather than a “holding.” Id. at 1069(citation omitted). Although that reference does not, by itself,conclusively establish that our “comment” was dictum, it iscertainly consistent with our conclusion that it was dictum. Wealso note that one judge in responding to the municipality’spetition for rehearing in Anela, referred to this language inUnion County as dictum.

The judge wrote: “while Union County did state indictum that requiring detainees to sleep on mattresses on cellfloors could constitute unconstitutional punishment under thefourteenth amendment, its observations were expressly limitedto the situation in which detainees were subjected to suchconditions ‘for more than a few days.’” Anela v. City ofWildwood, 793 F.2d 514, 515 (3d Cir. 1986) (emphasis added).

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because “the precise issue [is not] before the court.”).19

Therefore, the district court here did not err inconcluding that it was not bound by our holding in Union City.That does not, however, end our inquiry because the districtcourt did not then proceed to conduct a proper analysis of theseplaintiffs’ due process claim given their status of pre-trialdetainees.

20 Wilson v. Seiter did not address pre-trial detainee’s dueprocess rights. Indeed, the Court in Seiter, could not logically

determine whether a condition of confinement constitutes

punishment by applying a test that assumes the propriety of

punishment but prohibits punishment only when it becomes

cruel and unusual.

29

C. The district court’s analysis of the conditions ofconfinement claim.

In resolving the plaintiffs’ conditions of confinementclaim, the district court wrote: “In order to prevail on theirclaim that they are being punished, [the pre-trial detainees] mustshow that sleeping on mattresses on the floor deprived them ofthe ‘minimal civilized measures of life’s necessities.’” 2003 WL1697537 at *5 (quoting Rhodes v. Chapman, 452 U.S. 337,347 (1981)). The court then explained that, in reviewing theclaim, it must examine the “totality of the circumstances . . . inorder to discover whether the overall conditions at Gander Hilldeprived [the pre-trial detainees] of ‘an identifiable humanneed, such as food, warmth, or exercise.’” Id. (quotingDickinson v. Taylor, 2000 WL 1728363 (D. Del. May 19,2000). The court cited Wilson v. Seiter, 501 U.S. 294, 304-05(1991)).20 The court then rejected plaintiffs’ claim relying uponits own prior decisions. It reasoned:

Under an Eighth Amendment analysis, this courthas previously held that having to sleep on amattress on the floor does not rise to the level ofa constitutional violation. For example, in

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[another case], the court held that in light of theprison overcrowding problem and the need forprison authorities to take interim measures tohouse inmates within a limited space, the fact thatan inmate had to sleep on the floor in crowded ordirty conditions is insufficient to state a claimunder Section 1983.

2003 WL 1687537 at *5 (citations and internal quotationsomitted). The district court observed that “sleeping on the flooris not ideal,” as we did in Union County. However, the courtreasoned that, since “prison overcrowding in now a fact of life,”sleeping on the floor “is not a violation of the EightAmendment” “[a]s long as plaintiff is receiving adequate food,shelter, and clothing[.]” Id. at *5 n.2. The district court thenreasoned that, since there was no constitutional violation, “theissue of whether [the prison officials] acted with deliberateindifference need not be reached.” Id. at *6.

Given our discussion of Bell v. Wolfish, supra, it is clearthat the district court’s analysis of the pre-trial detainees’ claimis fatally flawed. The Eighth Amendment “was designed toprotect those convicted of crimes and consequently the Clauseapplies only after the State has complied with constitutionalguarantees traditionally associated with criminal prosecutions.” Whitley v. Albers, 475 U.S. 312, 318 (1986) (citation andinternal quotations omitted). Thus, the Eighth Amendment’sCruel and Unusual Punishments Clause does not apply until

21The Cruel and Unusual Punishments Clause, and indeed the

entire Eighth Amendment, is made applicable to the states

through the Fourteenth Amendment. Robinson v. California,

370 U.S. 660 (1962).

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“after sentence and conviction.”21 Graham v. Connor, 490 U.S.392 n.6 (1989).

In Wilson v. Seiter, 501 U.S. 294 (1991), the SupremeCourt set forth the standard for alleged violations of the EighthAmendment while addressing non-medical conditions ofconfinement. The Court held that the prisoner must prove thatprison officials acted with deliberate indifference that deprivedhim/her of “‘the minimal civilized measure of life’snecessities.’” Id. at 298-99, 301-05 (quoting Rhodes v.Chapman, 452 U.S. 337, 347 (1981)). Here, the district courtcorrectly cited the standard that governs plaintiffs’ claims asfollows:

The U.S. Supreme Court set the standard fordetermining whether a condition of confinementof pretrial detainees violated their constitutionalrights in Bell v. Wolfish. Whether there is aconstitutional violation turns on whether thedisability is imposed for the purpose ofpunishment or wether it is but an incident ofsome other legitimate governmental purpose.The government may detain an individual; thenecessary inquiry is whether the conditions andrestrictions of the detention amount to

32

punishment.

2003 WL at *3 (citation omitted, emphasis added). However,the court then relied upon our decision in Kost v. Kozakiewicz,1 F.3d 176 (3d Cir. 1993) in concluding that, “[n]evertheless,in Bell v. Wolfish and later cases, it is clear that when a court isconsidering general, non-medical conditions of confinement,the standard is the same for both pretrial detainees andsentenced inmates.” Hubbard v. Taylor, 2003 WL 1697537, *3(D. Del. 2003). More specifically, the district court cited ourstatement that “Pretrial detainees . . . are entitled to at least asmuch protection as convicted prisoners, so the protections of theEighth Amendment would seem to establish a floor of sorts.”Kost, 1 F.3d at 188 n. 10. (emphasis added).

In Kost, we relied upon Wilson v. Seiter to conclude that“the standard for violations of the Eighth Amendment based onnonmedical conditions of confinement . . . would also apply toappellants as pretrial detainees through the . . . Due ProcessClause.” Kost, 1 F.3d at 188. Our analysis then becamesomewhat misleading as we proceeded to adopt a “deliberateindifference” inquiry to conclude that “[p]laintiffs havetherefore stated a claim sufficient to withstand dismissal underthe Seiter standard. . . .” Id.

The district court was clearly mislead by our Kostanalysis. The court concluded that Kost was consistent with itsown prior holdings in similar cases where the district court hadapplied an Eighth Amendment analysis to conditions ofconfinement claims of pre-trial detainees. The court reasoned:“[t]his court likewise has found that pre-trial detainees are

33

afforded essentially the same protection as convicted prisonersand that the Eighth Amendment analysis is appropriate fordetermining if the conditions of confinement rise to the level ofa constitutional violation.” 2003 WL at * 3 (citing Ellegood v.Taylor, No. 01-213 , 2002 WL 449758 (D. Del March 18,2002).

The court also relied upon City of Revere v. Mass. Gen.Hosp., 436 U.S. 239 (1983), stating: “Case law has established,

however, that pretrial detainees are afforded essentially the same

level of protection under the Fourteenth Amendment; therefore,

an Eighth Amendment analysis is still appropriate.” 2003 WL at

*3, n.1. However, that is an overstatement of the holding in City

of Revere. There, the Court stated that “[t]he Eighth

Amendment’s proscriptions of cruel and unusual punishments

is violated by ‘deliberate indifference to serious medical needs

of prisoners.’” 463 U.S. 239, 244. The issue there involved a

municipality’s liability for medical costs of treating a suspect

police had wounded as he was attempting to flee. The Court

reiterated that “Eighth Amendment scrutiny is appropriate only

after . . . [conviction].” Id. It therefore viewed the Eighth

Amendment as relevant to conditions of pre-trial detainees only

because it established a floor. The Court explained: “the due

process rights of a [pre-trial detainee] are at least as great as the

Eighth Amendment protections available to a convicted

prisoner.” Id. (citing Bell v. Wolfish).

Thus, although the district court correctly stated the

appropriate test here, it overlooked the context and limitations

of the relevant statements in City of Revere and Kost. The

district court then erred in concluding that “pretrial detainees are

22 Even before Kost, we had analyzed a pre-trial detainee’sclaim of inadequate medical treatment under the EighthAmendment standards articulated in Estelle v. Gamble. Forexample, in Inmates of Allegheny County Jail v. Pierce, 612F.2d 754, 762 (3d Cir. 1979), we held that “at a minimum, the‘deliberate indifference’ standard of Estelle v. Gamble, must bemet” at an institution housing pre-trial detainees, and in Boringv. Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987), we noted thateven though the constitutional protections afforded prisonersand pre-trial detainees against inadequate medical care arise

34

afforded essentially the same protection as convicted prisoners

and that an Eighth Amendment analysis is appropriate for

determining if the conditions of confinement rise to the level of

a constitutional violation.”

The district court’s error is understandable given our

discussion in Kost. There, we were discussing medical and

nonmedical conditions of confinement. Although we specifically

stated that the Eighth Amendment provided a floor for our due

process inquiry into the medical and nonmedical issues, much of

our discussion focused on whether the plaintiffs had established

the “deliberate indifference” that is the hallmark of cruel and

unusual punishment under the Eighth Amendment. See Estelle

v. Gamble, 429 U.S. 97 (1976). Moreover, we failed to cite Bell

v.Wolfish which, as we have explained, distinguishes between

pretrial detainees’ protection from “punishment” under the

Fourteenth Amendment, and convicted inmates’ protection from

punishment that is “cruel and unusual” under the Eighth

Amendment.22

from different textual sources, the standards governing theprovision of medical care to each class are similar. We havecontinued this practice after Kost. See, e.g., Natale v. CamdenCounty Correctional Facility, 318 F.3d 575, 581-82 (3d Cir.2003) (“In previous cases, we have found no reason to apply adifferent standard than that set forth in Estelle . . . We thereforeevaluate Natales’ Fourteenth Amendment claim for inadequatemedical care under the standard used to evaluate similar claimsbrought under the Eighth Amendment.”).

The analysis is further confused because Kost suggestsa separate and distinct analysis governs nonmedical and medicalclaims under the Eighth Amendment. However, in Seiter, theCourt stated:

Whether one characterizes the treatment receivedby [the prisoner] as inhumane conditions ofconfinement, failure to attend to hismedicalneeds, or a combination of both, it isappropriate to apply the deliberate indifferencestandard articulated in Estelle.

501 U.S. at 304 (brackets in original) (internal quotation marksomitted).

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Nevertheless, it is clear that plaintiffs here “are notwithin the ambit of the Eighth Amendment[‘s],” prohibitionagainst cruel and unusual punishment. Boring v. Kozakiewicz,833 F.2d 468, 471 (3d Cir. 1987). They are not yet at a stage ofthe criminal process where they can be punished because they

23In Kost, we evaluated claims by pretrial detainees that theconditions of their confinement were unconstitutional.Although we focused on whether the plaintiffs had establishedthe “deliberate indifference” that characterizes cruel andunusual punishment in violation of the Eighth Amendment, seeEstelle v. Gamble, 429 U.S. 97 (1976), we specificallydistinguished between the protections of the Due ProcessClause and those of the Eighth Amendment. Kost, 1 F.3d at188 (“Pretrial detainees are not within the ambit of the EighthAmendment but are entitled to the protections of the DueProcess clause.”) (quoting Boring v. Kozakiewicz, 833 F.2d468, 471 (1987)). Moreover, we recognized that pretrialdetainees are entitled to greater constitutional protection thanthat provided by the Eighth Amendment. Id. at 188 n.10.Although we did not specifically cite Bell v. Wollfish, ouranalysis in Kost is consistent with Bell’s distinction betweenpretrial detainees’ protection from “punishment” under theFourteenth Amendment, on the one hand, and convictedinmates’ protection from punishment that is “cruel and unusual”under the Eighth Amendment, on the other.

36

have not as yet been convicted of anything. As the SupremeCourt explained in Bell, pre-trial detainees cannot be punishedat all under the Due Process Clause.

As we have already explained, Bell v. Wolfishestablished that standard. The district court therefore reliedupon seemingly applicable language in Kost withoutconsidering its context, or the controlling authority of Bell v.Wolfish.23 Accordingly, we must reverse the district court’s

24 The prison officials claim that this action is barred by the

Prisoner Litigation Reform Act (“PLRA”). That Act provides

in part:

No Federal civil action may be brought by aprisoner confined in a jail, prison, or othercorrectional facility, for mental or emotionalinjury suffered while in custody without a priorshowing of physical injury.

42 U.S.C. § 1997e(e). However, the plaintiffs do allegephysical injury. Accordingly, there is a factual dispute for thedistrict court to resolve on remand.

Moreover, § 1997e(e) does not bar all such claims absentphysical injury as claims for declaratory relief as well asnominal and punitive damages for violations of constitutionalrights are not barred by § 1997e(e). See Doe v. Delie, 257 F.3d309, 314 n.13 (3d Cir. 2001) (“However, § 1997e(e) does notbar claims seeking nominal damages to vindicate constitutionalrights, nor claims seeking punitive damages.”); Allah v. Al-Hafeez, 226 F.3d 247, 251-52 (3d Cir. 2000) (Holding that §1997e(e) does not bar nominal and punitive damages for

37

grant of summary judgment to the prison officials on the pre-trial detainees’ conditions of confinement claim and remand fora proper analysis of that claim under the standard announced inBell v. Wolfish.24

violations of constitutional rights even in the absence ofphysical injury).

25The prison officials cite to the following cases: Renn v.

Taylor, 2001 WL 657591 (D.Del. March 2, 2001) (Robinson,

J.); Bagwell v. Brewington-Carr, 2000 WL 1728148 (D.Del.

April 27, 2000) (Sleet, J.); Jackson v. Brewington-Carr, 1999

WL 27124 (D.Del. Jan. 14, 1999) (Farnan, J.); Bartley v. Taylor,

Civ. A. No. 98-503 (D.Del. Sept. 10, 1999) (McKelvie, J.);

Torres v. Brewington-Carr, Civ. A. No. 98-159 (D.Del. Nov.

29, 1999) (Longobardi, J.).

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In their motion for summary judgment, the prisonofficials also argued that they were entitled to qualifiedimmunity from the conditions of confinement claim. Abdul-Akbar v. Watson, 4 F.3d 195, 210-02 (3d Cir. 1993). The prisonofficials argued they acted reasonably and are therefore immunefrom suit because every district court judge in the District ofDelaware has ruled that having pre-trial detainees sleep onmattresses on the floor at Gander Hill is constitutionallypermissible.25 The district court addressed the merits of theplaintiffs’ claim without reaching defendants’ entitlement toqualified immunity.

If, on remand, the prison officials again assert qualifiedimmunity, we remind the district court that the immunity claimmust be resolved first. Since qualified immunity is “animmunity from suit, rather than a mere defense to liability, it isimperative to resolv[e] immunity questions at the earliest

26The prison officials claim that Ketchum is no longer

incarcerated at Gander Hill. If that is true, we assume that the

prison officials will properly inform the district court on

remand.

39

possible stage in litigation.” Saucier v. Katz, 533 U.S. 194,200-01 (2001) (citations omitted) (emphasis in original).

D. The ADA claim.

The district court also failed to address Ketchum’s ADAclaim. Rather, the court simply granted summary judgment tothe prison officials on that claim with no analysis. The districtcourt’s failure to explain why it granted summary judgment tothe prison officials on the ADA claim is contrary to therequirements set forth in Valdino v. A. Valey Engineers, 903F.2d 253, 259 (3d Cir. 1990). There, we explained that “wewill exercise our supervisory power to require the district courtsin this circuit to accompany grants of summary judgmenthereafter with an explanation sufficient to permit the parties andthis court to understand the legal premise for the court’s order.” We will also remand the ADA claim to the district court forcompliance with the directive of Valdino.26

E. Class certification.

Although the district court did not explain why it deniedthe motion for class certification “as moot,” 2003 WL 1697537at *6, we assume that the motion was denied because the courtdismissed the underlying conditions of confinement claim and

27The defendants claim that no named plaintiff is still housed

at Gander Hill as a pre-trial detainee. Therefore, they contend

that any request for injunctive relief is moot. However, even if

no named plaintiff remains at Gander Hill as a pre-trial detainee,

because of the “temporary nature of confinement” at Gander

Hill, “the issues presented are . . . ‘capable of repetition, yet

evading review.’” Bell, 441 U.S. at 527 n.5 (citations omitted).

Therefore, we do not believe that the request for injunctive relief

is moot.

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therefore saw no need to entertain the motion for classcertification. Since we are reversing the grant of summaryjudgment and remanding for analysis under Bell v. Wolfish, wewill also reverse the district court’s denial of the classcertification motion. The district court can address that motionas it deems appropriate if the motion is renewed on remand.

IV. CONCLUSION

For the above reasons, we will vacate the grant ofsummary judgment to the defendants and remand the conditionsof confinement claim for consideration under Bell v. Wolfish.27

We will also remand the ADA claim and, the denial of the classcertification motion for compliance with Valdino v. A. ValeyEngineers.